Is It Time to File a Provisional Application for Patent?

Why provisional applications are a good idea

1. A provisional patent application offers a simplified and much lower-cost option than filing a nonprovisional utility patent application right out of the gate. All you need is a cover sheet, a detailed description of the invention explaining how it is made and how it is used—including drawings if necessary to understand the invention—the name(s) of the inventors, and the filing fee.
2. A provisional patent application, which is good for a period of 12 months, allows you to label your invention "patent pending" for the entire provisional period and gives you that time to begin seeking funding or doing market research. Also, "patent pending" puts anyone who might try to copy your invention on notice that you may receive a patent on that invention and that they would then be liable for infringing your patent starting the day you file your provisional application.
3. If you file a nonprovisional patent application within the 12-month provisional period, you can claim the priority date of the provisional application as the filing date of your patent. This assumes particular importance in instances where others have applied for patents on similar inventions. It also extends the life of your regular patent from 20 to 21 years, since a regular utility patent is good for 20 years from the date of its filing.

What to keep in mind

1. You should not think a provisional application automatically becomes a full, regular patent grant--because it doesn't. For you to receive full patent protection for your invention, you will have to file a nonprovisional utility patent application, either within 12 months of your provisional application (to take advantage of the early filing date) or anytime you want—you can file a nonprovisional application right off the bat if you're ready. You can also let your provisional application expire and re-file either another provisional application (getting you another 12 months of “patent pending” status) or a nonprovisional utility patent application. In other words, you have lots of options.
2. In most cases, filing a hastily put-together provisional application is not recommended. The wording may be quite vague in these applications, and possibly the invention is not well thought out. Filing an application with insufficient or incorrect details can lose you the priority filing date afforded by your provisional application. Also, if you want to receive that early filing date, the invention described in your provisional application will have to match fairly closely the invention contained in your corresponding nonprovisional application—practically, this means that the examiner in charge of your file will have to be able to recognize the inventions as the same.
3. Provisional applications do not cover design patents. When your invention covers the appearance of a functional object rather than the function of the object itself, you may qualify for a design patent. Again, provisional applications for design patents are not allowed or accepted.

For many, a provisional patent application is the best way to start protecting an invention. So, are you ready to get started?